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Filed 6/1/18 P. v. Wagner CA4/1NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

KENNETH LEE WAGNER,

Defendant and Appellant. D073608

(Super. Ct. No. FVI1502176)

APPEAL from a judgment of the Superior Court of San Bernardino County, Lisa M. Rogan, Judge. Affirmed.

Richard C. Power, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Kenneth Lee Wagner of inflicting injury on a spouse or fellow parent (Pen. Code, § 273.5, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11377), and vandalism (§ 594, subd. (a)). The trial court made a true finding that Wagner had five prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prison priors (§ 667.5, subd. (b)). Wagner was sentenced to a term of 11 years in prison. Wagner contends (1) substantial evidence does not support the domestic violence conviction because the injury he inflicted did not result in a traumatic condition; (2) the trial court abused its discretion in denying his motion to strike his prior strikes; and (3) the trial court abused its discretion by imposing an aggravated upper term sentence for the domestic violence count. We conclude that Wagner's arguments lack merit, and we accordingly affirm the judgment. I.FACTUAL AND PROCEDURAL BACKGROUND Based on a report that someone was throwing rocks, Deputy Sheriff Michael Catalano was dispatched to an apartment building where he saw Wagner, Wagner's wife (Wife) and Wagner's teenaged son (Son) standing outside an apartment where Wife and Son lived. Wagner and Wife were separated, and Wagner did not have permission to be at the apartment. Wife had a large bump on her left temple and seemed "kind of in shock." Wife spoke with Deputy Catalano and told him that she had come home from work to check on Son, and she saw that Wagner was inside the apartment with Son. The door frame was damaged where Wagner apparently obtained entry to the apartment. Wife told Deputy Catalano that Wagner approached her near the doorway to the apartment and punched her two times in the left temple. Wife stated that as a result of being punched, she had a "headache, a lot of pain and vision problems." Paramedics were called to examine Wife, but she refused further medical treatment. When Deputy Catalano phoned Wife a few hours after the incident to check on her medical condition, she told him that her headache was worse and her vision problems were not improving. Deputy Catalano interviewed Wife twice while he was at the apartment. The first interview was recorded, but the second interview was not. During the first interview, Deputy Catalano asked Wife if she lost consciousness as a result of the punches, and she stated that she did not. However, Deputy Catalano testified that at some point, presumably during the unrecorded interview, Wife told him that she fell back and lost consciousness after the second punch. In an amended information, Wagner was charged with inflicting injury on a spouse or fellow parent (§ 273.5, subd. (a); count 1); first degree residential burglary (§ 459; count 2); assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3); misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377; count 4), and misdemeanor vandalism (§ 594, subd. (a); count 5). At trial, Wife and Son testified that they did not remember the details of the incident that led to Wagner's arrest, and Wife denied that she was punched by Wagner. However, the jury heard the statements that Wife and Son made to Deputy Catalano and viewed photographs of the injury to Wife's face, which show a significant bump on her left temple. The jury returned a guilty verdict on count 1, which charged Wagner with inflicting injury on a spouse or fellow parent (§ 273.5, subd. (a)), and on the two misdemeanor counts for possession of a controlled substance (Health & Saf. Code, § 11377; count 4), and vandalism (§ 594, subd. (a); count 5). The jury found Wagner not guilty of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 3), and the trial court granted Wagner's motion to dismiss the first degree residential burglary charged in count 2 pursuant to section 1118.1. The trial court made a true finding that Wagner incurred five prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served three prior prison terms (§ 667.5, subd. (b)). The trial court denied Wagner's motions to strike his prior strikes, and sentenced Wagner to serve an 11-year prison term. The sentence consisted of a four-year upper term sentence on the domestic violence conviction in count 1, doubled to eight years due to Wagner's prior strikes (§ 667, subd. (e)(1)(2)(C)), and three one-year consecutive sentences for the three prior prison terms. Wagner filed a timely appeal.II.DISCUSSIONA. Substantial Evidence Supports the Domestic Violence Conviction We first consider Wagner's contention that substantial evidence does not support the jury's finding that he committed domestic violence in violation of section 273.5, subdivision (a). In considering a challenge to the sufficiency of the evidence, "we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. . . . We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. . . . If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. . . . 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' " (People v. Albillar (2010) 51 Cal.4th 47, 60, citations omitted.) Section 273.5, subdivision (a) prohibits the willful infliction of "corporal injury resulting in a traumatic condition" upon a spouse or fellow parent. Subdivision (d) of section 273.5 defines "traumatic condition" as "a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force." Case law establishes, as that statute states, that a "minor" injury qualifies as a traumatic condition because the "Legislature has clothed persons . . . in intimate relationships with greater protection by requiring less harm to be inflicted before the offense is committed." (People v. Gutierrez (1985) 171 Cal.App.3d 944, 952 (Gutierrez).) For instance, in People v. Beasley (2003) 105 Cal.App.4th 1078, 1085, the victim suffered a traumatic condition when she was bruised as a result of being hit with a rod used to open and close vertical blinds. Similarly, in People v. Wilkins (1993) 14 Cal.App.4th 761, 771, police officers had probable cause to conclude that the defendant inflicted a traumatic condition in violation of section 273.5, subdivision (a) when the defendant "hit [the victim] a few times in the face and . . . her neck and nose were sore," and the police officer "observed redness about her face and nose." Wagner contends that the evidence was insufficient to support a finding that Wife suffered a "traumatic condition" as a result of his punches to her left temple. He contends that the undisputed evidence shows that Wife suffered "only very minor injuries." Specifically, Wagner invites us to review the photographs of Wife taken by Deputy Catalano, which he contends establish that the injury to Wife was "de minimus or very minor or trivial." Wagner states that "the photographs show a small lump and that is about it for injuries." We reject Wagner's argument because the record provides ample evidence, on which a reasonable jury could rely, to find that Wife suffered a traumatic condition as a result of Wagner's two punches to her left temple. As an initial matter, we reject Wagner's characterization of the injury shown in the photographs as a "small lump." A ruler in the photograph that was held up next to the injury shows that it is a significant bump that is approximately one and half inches in length and in width. A bump of that size constitutes, at minimum, an injury "of a minor . . . nature." (§ 273.5, subd. (d).) However, not even taking into consideration the size of the bump, substantial evidence in the record supports a finding that Wife suffered other injuries that constitute a traumatic condition. As Wife told Deputy Catalano, as a result of the punches, she had a headache and vision problems, which lasted for at least a few hours after the incident. Moreover, Deputy Catalano testified that at some point during his interaction with Wife, she told him that she had fallen back and lost consciousness after the second punch. The jury was entitled to credit that testimony, even though, in the recorded part of the interview, Wife stated that she did not lose consciousness. In defining the crime of felony battery, the legislature established that loss of consciousness qualifies as serious bodily injury. (§ 243, subd. (f)(4) ["Serious bodily injury" means a serious impairment of physical condition, including, but not limited to . . . loss of consciousness . . . ."].) Significantly, it has long been established that the traumatic condition required for a violation of section 273.5, subdivision (a), requires less harm than the serious bodily injury required for felony battery (Gutierrez, supra, 171 Cal.App.3d at p. 952 [expressly stating that the serious bodily injury required for felony battery is a "higher degree[] of harm" than is required under § 273.5, subd. (a)].) Accordingly, evidence that Wife suffered a loss of consciousness when Wagner punched her is substantial evidence of serious bodily injury, and therefore necessarily also constitutes substantial evidence that Wife suffered the type of minor injury that constitutes a traumatic condition within the meaning of section 273.5, subdivision (a). In sum, we conclude that the record contains substantial evidence of a traumatic condition based on the fact that Wife incurred a bump, vision problems, and a headache as a result of the assault, as well as based on evidence that Wife lost consciousness when Wagner punched her.B. The Trial Court Did Not Abuse Its Discretion by Denying Wagner's Motion to Strike His Prior Strikes

We next consider Wagner's contention that the trial court abused its discretion in denying his motion to strike his five prior strikes. A trial court may strike prior felony conviction allegations in cases prosecuted under the Three Strikes law when such an order is "in furtherance of justice." (§ 1385, subd. (a); see People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530.) "[T]he law creates a strong presumption that any sentence that conforms to [its] sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).) In deciding whether to strike prior conviction allegations, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) We review a trial court's refusal to strike prior conviction allegations for abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 375.) "[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "Where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Here, the trial court denied the motion with the following explanation: "[B]ased on the defendant's record, the violence that was displayed, not only does the actual elements of the crime, but the way in which it was conducted, i.e. lying in wait, the breaking down of the door when the defendant knew that the child's mother was not in the residence for his protection, the fact that the son indicated that there was somefear once he saw that his father was in the home and should not have been, and the defendant's current probationary status at the time of the crime, in addition to his previous and current record, indicating no attempts by the defendant to be free from a crime free life style, the Court is going to deny the motion to strike the prior strikes." Relying on the same characterization of Wife's injuries as in his challenge to the sufficiency of the evidence, Wagner contends that the trial court abused its discretion in denying the motion to strike his prior strikes because "the factual basis for the present offense was so very minor in seriousness." Wagner goes so far as to contend that "[t]he current case is based on injuries that are so minor as to constitute a technical violation of law." According to Wagner, the trial court abused its discretion because it "relied far too heavily on the qualifying priors while giving too little weight to the de minimus nature of the present offense." We reject Wagner's argument because we do not agree with his characterization of the offense as "de minimus." As we have explained, Wife was harmed by Wagner's punches in that she incurred a substantial-sized bump, suffered from a headache and vision problems and, according to Detective Catalano's testimony, fell back and lost consciousness after the second punch. Moreover, as the trial court reasonably pointed out, the crime was made more serious by the fact that Wagner also broke down the door and scared his Son by entering the apartment when he did not have permission to be there. Further, as the trial court observed, Wagner committed the offense while he was on probation. Based on those facts the trial court could reasonably conclude that Wagner did not fall outside of the spirit of the Three Strikes law, and that the instant crime was not of a "minimal nature" as Wagner contends. Therefore, Wagner has not established that the trial court abused its discretion in denying the motion to strike his prior strikes.

C. The Trial Court Did Not Abuse Its Discretion in Imposing an Upper Term Sentence

Wagner's final contention is that the trial court abused its discretion in selecting a base upper term sentence of four years for the domestic violence conviction. Under section 1170, subdivision (b), "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." A trial court has the discretion "to select among the lower, middle, and upper terms specified by statute without stating ultimate facts deemed to be aggravating or mitigating under the circumstances and without weighing aggravating and mitigating circumstances. [Citations.] Rather, 'a trial court is free to base an upper term sentence upon any aggravating circumstance that the court deems significant, subject to specific prohibitions.' " (People v. Jones (2009) 178 Cal.App.4th 853, 866 (Jones).) "In determining the appropriate term, the court may consider the record in the case, the probation officer's report, other reports . . . , and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing. The court shall select the term which, in the court's discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term . . . ." (§ 1170. subd. (b).) "Neither section 1170 nor the California Rules of Court attempt to provide an inclusive list of aggravating circumstances. Thus, a trial court is free to base an upper term sentence upon any aggravating circumstance that (1) the court deems significant and (2) is reasonably related to the decision being made." (People v. Moberly (2009) 176 Cal.App.4th 1191, 1196.) A trial court's decision to impose an upper term sentence is subject to review for abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) "The trial court's sentencing discretion must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' . . . [A] trial court will abuse its discretion under the amended scheme if it relies upon circumstances that are not relevant to the decision or that otherwise constitute an improper basis for decision." (Ibid., citation omitted.) Here, the trial court gave an extensive explanation of why it was selecting the upper term sentence. After adopting the findings in the probation officer's report regarding the circumstances in aggravation and mitigation, the trial court stated the following: "What's most disturbing to the Court is the fact that the defendant was on a term, granted a term of probation at the time of this incident. And in his statement to probation, he felt like he didn't have any choice but to go home, indicating to the Court that he feels like that is as an option for him regardless of the orders of the court. And, in fact, stated that he had a right to be at the home because he was on the lease. "Obviously, these are statements to the Court that indicate a further potential [of] harm to the victim, because in the Court giving the defendant directions and orders while on probation, [sic] the defendant seemingly just does what he wants. He has a horrible record as far as his priors. They are priors of violence. The Court is concerned with the safety of not only the victim, but the child who all of this was done in front of, and, in fact, he broke through the front door with the son being there, and he knew that the mother was not there, because testimony showed that he watched as the mother left for work, and then began to go through the home to do what he pleased. So based on those factors, the Court does believe that the upper term is warranted."

Continuing to rely on his characterization of the crime as minor in seriousness, Wagner contends that the trial court abused its discretion in selecting the upper term because "[t]he facts of this matter do not indicate an aggravated attack" and Wife "suffered only very minor injuries, basically trivial in nature." We reject the argument for two reasons. First, as we have explained, we do not agree with Wagner's attempt to minimize the serious nature of his crime or with his contention that Wife's injuries were "basically trivial." Second, the trial court identified several aggravating factors that amply supported its decision to impose an upper term sentence. Specifically, the trial court incorporated the numerous aggravating factors set forth in the probation officer's report and it further commented on its concern with the nature in which Wagner committed the crime and with Wagner's demonstrated refusal to remain law abiding. In light of the trial court's discretion to " 'base an upper term sentence upon any aggravating circumstance that the court deems significant' " (Jones, supra, 178 Cal.App.4th at p. 866), we conclude that after considering all the evidence before it, the trial court was well within its discretion to select the upper term sentence based on the aggravating factors that it identified.

DISPOSITION The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

AARON, J.

Description

A jury convicted Kenneth Lee Wagner of inflicting injury on a spouse or fellow parent (Pen. Code, § 273.5, subd. (a)), possession of a controlled substance (Health & Saf. Code, § 11377), and vandalism (§ 594, subd. (a)). The trial court made a true finding that Wagner had five prior strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and three prison priors (§ 667.5, subd. (b)). Wagner was sentenced to a term of 11 years in prison. Wagner contends (1) substantial evidence does not support the domestic violence conviction because the injury he inflicted did not result in a traumatic condition; (2) the trial court abused its discretion in denying his motion to strike his prior strikes; and (3) the trial court abused its discretion by imposing an aggravated upper term sentence for the domestic violence count. We conclude that Wagner's arguments lack merit, and we accordingly affirm the judgment.